Bheru Singh vs K. Ikramuddin Ansari and Another

N.K. Mody, J.—This order shall also govern the disposal of MA No. 370/ 2002 as both the cases are arising out of the same accident.

Being aggrieved by the award dated 24th November, 2001, passed by IV MACT, Dhar in Claim Case No. 17/2001 whereby the claim petition filed by the appellant has been allowed and a sum of Rs. 80,000 has been awarded along with interest @ 9% per annum and respondent No. 3 has been exonerated, the present appeal has been filed. In M.A. No. 370/2002 the award dated 24th November, 2001, passed by IV MACT, Dhar in Claim Case No. 18/2001 whereby a sum of Rs. 95,000 along with interest @6% per annum has been awarded by the learned Tribunal and the same has been challenged by the appellant.

Short facts of the case are that an accident took place on 13th January, 1998, at about 1.00 p.m. when appellant of both cases were going on a tractor bearing registration No. MP-11-A/4422 which was being driven by the respondent No. 5, owned by the deceased Gobaji and was insured with respondent No. 6. The tractor met with an accident when it was towing the bus bearing registration No. CPL-8062 for repairing. The bus was being owned by respondent No. 1, driven by respondent No. 2 and insured with respondent No. 3. Undisputedly, the bus was insured with respondent No. 3 up to 12th January, 1998 and insurance has taken place on 13th January, 1998 at about 7.00 p.m. The appellant in both the cases who were travelling on the tractor sustained injuries. The claim petitions were opposed by the respondents. Learned Tribunal after framing issues and recording the evidence, allowed the claim petitions. Since, the learned Tribunal found that at the relevant time the bus was not insured, therefore, respondent No. 3 was exonerated. Learned Tribunal further apportioned the liability between respondent Nos. 1 and 2 and respondent Nos. 4 to 6 as 50%, 50% of the amount awarded.

Mr. S.L. Jain, learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, the amount awarded is on lower side. It is submitted that appellant sustained injuries in both of his legs as the leg was crushed and there was an amputation of tow of right leg and amputation of right finger of right hand. It is submitted that the appellant was aged 30 years and permanent disability has been assessed as 38%. It is submitted that the break-up of amount of Rs. 80,000 awarded by the learned Tribunal is as under:

Rs. 50,000 towards permanent disability Rs. 10,000 towards pains and sufferings Rs. 20,000 towards medical expenses

So far as MA No. 370/2002 is concerned, learned Counsel for appellant submits that the break-up of amount of Rs. 95,000 awarded by the learned Tribunal is as under:

Rs. 35,000 towards medical expenses Rs. 10,000 towards pains and sufferings Rs. 50,000 towards permanent disability

It is submitted that the appellant Babulal sustained injuries in his leg and there was amputation of tow of right leg. It is submitted that permanent disability has been assessed as 21%. It is further submitted that the amount awarded is on lower side as both the legs have been crushed and there were compound fractures.

Learned Counsel for the appellant submits that the learned Tribunal committed error in exonerating the respondent No. 3. It is submitted that since the offending bus was insured upto 12.00 p.m. on 12th January, 1998, and was again insured on 13th January, 1998, therefore, it should be treated that the offending bus was insured at the relevant time when the accident took place. It is submitted that learned Tribunal committed error in apportioning the liability between the respondent Nos. 1 and 2 and 4 to 6. Learned Counsel for the appellant place reliance on a decision in the matter of Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, , wherein Full Bench of this Court has observed that "there cannot be apportionment of the joint tortfeasors. In case both the joint tortfeasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of law, there is no necessity to apportion the inter se liability of joint tortfeasors".

Learned Counsel for the respondent 6 submits that since the offending tractor which was insured with respondent No. 6 was for agricultural purpose, therefore, the learned Tribunal committed error in holding the respondent No. 6 responsible for 50% of the amount awarded.

Learned Counsel for respondent Nos. 1 and 2 submit that since the vehicle was insured with the respondent No. 3 up to 12th January, 1998, and again insured from 13th January, 1998, therefore, learned Tribunal committed error in exonerating the respondent No. 3 from the liability.

Learned Counsel for respondent No. 3 submits that since the accident took place at about 1.30 p.m. on 13th January, 1998 and the cover-note was issued at 7.00 p.m. on 13th January, 1998, that is after the accident, therefore, the respondent No. 3 is not liable for payment of compensation and the learned Tribunal has rightly exonerated the respondent No. 3.

From perusal of the record, it appears that looking to the injuries sustained the amount awarded is on lower side. On account of attenders expenses incurred by appellant no amount has been awarded. Similarly, no amount has been awarded towards special diet and also loss of wages for the period when the appellant was under treatment. In the circumstances, the amount awarded is enhanced by Rs. 25,000 in each of the cases. So far as exoneration of respondent No. 3 is concerned, since the offending vehicle was not insured at the relevant time, therefore, learned Tribunal has rightly exonerated the respondent No. 3. So far as the liability of respondent No. 6 is concerned, neither the policy has been filed nor the evidence has been led, therefore it cannot be said that learned Tribunal committed error in holding the respondent No. 6 responsible for payment of compensation.

So far as apportionment of liability is concerned, in view of law laid down by Full Bench of this Court in case of Sushila Bhadoriya v. M.P. State Trans. Corporation (supra), which has been followed by this Court in the matter of Karansingh v. Lata in MA No. 91/2001 decided on 12th September 2005, the learned Tribunal committed error in apportioning the liability between the respondent Nos. 1,2 and 4 to 6. In view of this appeal is allowed in part. Appellants are further entitled for Rs. 25,000 in each case along with interest @ 6% per annum from the date of application. So far as the direction given by the learned Tribunal relating to apportionment of the award is concerned, the same is set-aside. The respondent Nos. 1, 2 and 4 to 6 shall be jointly and severally liable for payment of compensation.

With the aforesaid modifications, appeals stand disposed of.